EXHIBIT 2
FIRST AMENDMENT TO
ASSET PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AND SALE AGREEMENT
(the "Agreement") is made and entered into this 28th day of
September, 1995 (the "Execution Date") by and between CAPITAL
INDUSTRIES, INC., an Indiana Corporation ("Capital"); TRUCKPRO
PARTS & SERVICE, INC., an Indiana Corporation ("Seller"); and
XXXXXXX LIMITED PARTNERSHIP, an Arkansas limited partnership
("Buyer"). Buyer, Capital and Seller are hereby referred to from
time-to-time herein as the "Parties" and individually as a
"Party."
W I T N E S S E T H:
WHEREAS, Seller, Capital and Buyer have entered into an
Asset Purchase and Sale Agreement dated as of July 17, 1995 (the
"Purchase Agreement") wherein the agreements of the Parties
regarding the purchase and sale of substantially all of Seller's
assets are set forth, and the Parties desire to consummate the
transactions contemplated by the Purchase Agreement; and
WHEREAS, the Parties have modified certain of their
agreements set forth in the Purchase Agreement, and desire to
amend the Purchase Agreement to reflect such modifications;
NOW THEREFORE, in consideration of the premises set forth
above and the mutual agreements, covenants, representations and
warranties of the Parties hereinafter set forth, the Parties
hereby agree as follows:
1. Amendment of Section 1.2(l). The Parties agree that
Section 1.2(l) of the Purchase Agreement is hereby deleted in its
entirety and is hereby replaced by the following new Section
1.2(l):
"(l) all real properties (the "Owned Real
Properties") owned by Seller, including, but not limited to,
the parcels of property more particularly identified by
address and legal description upon Exhibit 1.2K, excluding,
however, (i) a certain parcel of unimproved real property
owned by Seller containing approximately 23,000 square feet
located at the corner of Beaver Street and XxXxxx Avenue in
Jacksonville, Florida (the "Jacksonville Excess Land"),
which parcel is also more particularly identified upon
Exhibit 1.2K, and (ii) the Jacksonville Property (as such
term is defined in Section 5.31 hereof); and"
2. Amendment of Section 1.3. The Parties agree that
Section 1.3 of the Purchase Agreement is hereby deleted in its
entirety and is hereby replaced by the following new Section 1.3:
"1.3 Retained Assets. The term "Retained Assets"
shall mean the following specified assets of Seller used
directly or indirectly in the Business:
(a) all of the issued and outstanding shares of the
capital stock of Seller; and
(b) the Jacksonville Excess Land; and
(c) the stock record books, original tax returns and
corporate minute books of Seller;
(d) all receivables owed to Seller by Capital, as set
forth as of the Execution Date upon Exhibit 1.3;
(e) all receivables related to volume discounts from HD
America, Inc., the stock of HD America, Inc. owned by
Capital and/or Seller, and certain promissory notes (the
"HDA Notes") owed by HD America, Inc. to Seller;
(f) the aggregate accrued interest on the HDA Notes;
(g) any deposits held by third parties related to
Seller's health and dental Plans; and
(h) all funds escrowed by Seller under and pursuant to
Seller's first mortgage encumbering Seller's Owned Real
Properties located in Jacksonville, Florida; and
(i) the Jacksonville Property (as such term is defined
in Section 5.31 hereof)."
3. Amendment of Section 2.2(b). The Parties agree that
Sections 2.2(b) of the Purchase Agreement is hereby deleted in
its entirety and is hereby replaced by the following new Section
2.2(b):
"(b) Upon delivery by Seller to Buyer of the September
30 Statement, and completion of (i) the audit thereof, (ii)
the Parties' review thereof, and (iii) all action taken by
the Arbitrator, if required, the Estimated Purchase Price
shall be re-calculated in the manner set forth in Section
2.2(a) based upon the Final Statement (as such term is
defined below), and if necessary, adjusted in the manner set
forth below. Following such re-calculation, the Estimated
Purchase Price as so re-calculated shall be deemed for all
purposes of this Agreement the "Final Purchase Price"."
4. Amendment of Section 2.3(a) and 2.3(b). The Parties
agree that Sections 2.3(a) and 2.3(b) of the Purchase Agreement
are hereby deleted in their entirety and are hereby replaced by
the following new Sections 2.3(a) and 2.3(b):
"2.3 Financial Statements Related to the Closing.
(a) July 31 Balance Sheet; July 31 Statement. As
soon as reasonably possible after July 31, 1995, but in no
event later than August 21, 1995, Capital shall deliver to
Buyer:
(i) an unaudited consolidating balance sheet (the
"July 31 Balance Sheet") of Capital as of 11:59 p.m. on
July 31, 1995. The July 31 Balance Sheet shall be
prepared in accordance with generally accepted
accounting principles applied in a manner consistent
with preparation of the March 31 Balance Sheet (as such
term is defined below); provided, however, that Buyer
acknowledges and agrees that the July 31 Balance Sheet
shall not contain, when delivered to Buyer, Capital's
normal year-end adjustments. The July 31 Balance Sheet
shall be delivered to Buyer as Schedule 2.3A in
accordance with Section 5.35 hereof and shall be
accompanied by a certificate of the Chief Financial
Officer of Capital (or, if no such officer exists, the
officer performing the duties of a Chief Financial
Officer) stating that it has been prepared in
accordance with the foregoing; and
(ii) an unaudited Statement of Assets To Be Sold
and Liabilities To Be Funded or Assumed, dated as of
July 31, 1995 (the "July 31 Statement"), together with
workpapers setting forth the adjustments to the July 31
Balance Sheet identified in next sentence. To prepare
the July 31 Statement, Capital shall adjust the assets
and liabilities set forth on the July 31 Balance Sheet
by the financial and other adjustments set forth in
Section 2.3(d). Capital shall otherwise prepare the
July 31 Statement in accordance with generally accepted
accounting principles applied in a manner consistent
with preparation of the March 31 Balance Sheet. The
July 31 Statement shall be delivered to Buyer as
Schedule 2.3B in accordance with Section 5.35 hereof
and accompanied by a certificate of the Chief Financial
Officer of Capital (or, if no such officer exists, the
officer performing the duties of a Chief Financial
Officer) stating that it has been prepared in
accordance with the foregoing.
(b) August 31 Balance Sheet; Closing Statement.
As soon as reasonably possible after August 31, 1995, but in
no event later than October 1, 1995, Capital shall prepare
and deliver to Buyer the following:
(i) an unaudited consolidating balance sheet (the
"August 31 Balance Sheet") of Capital as of 11:59 p.m.
on August 31, 1995. The August 31 Balance Sheet shall
be prepared in accordance with generally accepted
accounting principles applied in a manner consistent
with preparation of the March 31 Balance Sheet. The
August 31 Balance Sheet shall be delivered to Buyer as
Schedule 2.3C in accordance with Section 5.35 hereof
and accompanied by a certificate of the Chief Financial
Officer of Capital (or, if no such officer exists, the
officer performing the duties of a Chief Financial
Officer) stating that it has been prepared in
accordance with the foregoing; and
(ii) an unaudited Statement of Assets To Be Sold
and Liabilities To Be Funded or Assumed, dated as of
August 31, 1995 (the "Closing Statement"), together
with workpapers setting forth the adjustments to the
August 31 Balance Sheet identified in next sentence.
To prepare the Closing Statement, Capital shall adjust
the August 31 Balance Sheet by the financial and other
adjustments set forth in Section 2.3(d). Capital shall
otherwise prepare the Closing Statement in accordance
with generally accepted accounting principles applied
in a manner consistent with preparation of the March 31
Balance Sheet. The Closing Statement shall be
delivered to Buyer in accordance with Section 5.35
hereof as Schedule 2.3D and accompanied by a
certificate of the Chief Financial Officer of Capital
(or, if no such officer exists, the officer performing
the duties of a Chief Financial Officer) stating that
it has been prepared in accordance with the foregoing.
5. New Section 2.3(b)-1. The Parties agree that the
following language is hereby added to Section 2.3(b) of the
Purchase Agreement as a new Section 2.3(b-1):
"(b-1) September 30 Balance Sheet; September 30
Statement. As soon as reasonably possible after September
30, 1995, but in no event later than November 1, 1995,
Capital shall prepare and deliver to Buyer and to Coopers &
Xxxxxxx, LLP, Capital's auditors (the "Auditors"), the
following:
(i) an unaudited consolidating balance sheet (the
"September 30 Balance Sheet") of Capital as of 11:59
p.m. on September 30, 1995. The September 30 Balance
Sheet shall be prepared in accordance with generally
accepted accounting principles applied in a manner
consistent with preparation of the March 31 Balance
Sheet. The September 30 Balance Sheet shall be
delivered to Buyer as Schedule 2.3Y in accordance with
Section 5.35 hereof and accompanied by a certificate of
the Chief Financial Officer of Capital (or, if no such
officer exists, the officer performing the duties of a
Chief Financial Officer) stating that it has been
prepared in accordance with the foregoing; and
(ii) an unaudited Statement of Assets To Be Sold
and Liabilities To Be Funded or Assumed, dated as of
September 30, 1995 (the "September 30 Statement"),
together with workpapers setting forth the adjustments
to the September 30 Balance Sheet identified in next
sentence. To prepare the September 30 Statement,
Capital shall adjust the September 30 Balance Sheet by
the financial and other adjustments set forth in
Section 2.3(d). Capital shall otherwise prepare the
September 30 Statement in accordance with generally
accepted accounting principles applied in a manner
consistent with preparation of the March 31 Balance
Sheet. The September 30 Statement shall be delivered
to Buyer in accordance with Section 5.35 hereof as
Schedule 2.3Z and accompanied by a certificate of the
Chief Financial Officer of Capital (or, if no such
officer exists, the officer performing the duties of a
Chief Financial Officer) stating that it has been
prepared in accordance with the foregoing."
6. Amendment of Section 2.3(c). The Parties agree that
Section 2.3(c) of the Purchase Agreement is hereby deleted in its
entirety and is hereby replaced by the following new Section
2.3(c):
"(c) Audit. Capital shall then, at Capital's
expense, cause the Auditors to audit the September 30
Statement and to prepare a report on the results of such
audit as soon as reasonably possible following Capital's
delivery of the September 30 Statement. The report of
Capital's Auditors shall be prepared and delivered on or
before November 30, 1995 and shall be delivered
contemporaneously to Buyer, Seller and Capital by Capital's
Auditors. The audited September 30 Statement shall be
referred to herein as the "Final Statement."
7. Amendment of First Paragraph of Section 2.3(d). The
Parties agree that the first full paragraph of Section 2.3(d) of
the Purchase Agreement is hereby deleted in its entirety and is
hereby replaced by the following paragraph, which shall be the
first full paragraph of Section 2.3(d):
"(d) Closing and Post-Closing Adjustments. The
following adjustments shall be made by Capital acting
through its Chief Financial Officer (or, if no such officer
exists, the officer performing the duties of a Chief
Financial Officer) to the August 31 Balance Sheet and the
September 30 Balance Sheet to create the Closing Statement
and the September 30 Statement (the Parties agree the August
31 Balance Sheet adjustments shall be collectively referred
to as the "Closing Adjustments," and the September 30
Balance Sheet adjustments as the "Post-Closing
Adjustments"):"
8. Amendment of Section 2.3(d)(6). The Parties agree that
Section 2.3(d)(6) of the Purchase Agreement is hereby deleted in
its entirety and is hereby replaced by the following new Section
2.3(d)(6):
"(6) To the extent that Capital, Seller or the Buyer become
aware of any new facts or circumstances that would
affect any estimates made in the preparation of the
August 31 Balance Sheet or the September 30 Balance
Sheet or the August 31 Balance Sheet accruals or the
September 30 Balance Sheet accruals, including but not
limited to the accruals for incurred but unpaid health
claims, warranty expense, and vacation and sick pay,
such accruals shall be adjusted based upon such new
facts and circumstances. If, at Closing, no such new
facts and circumstances shall exist, Capital's Chief
Financial Officer shall so certify in writing to
Buyer."
9. Amendment of Section 2.3(d)(9). The Parties agree that
Section 2.3(d)(9) of the Purchase Agreement is hereby deleted in
its entirety and is hereby replaced by the following new Section
2.3(d)(9):
"(9) The Retained Assets and all liabilities of Seller
set forth on the August 31 Balance Sheet and the
September 30 Balance Sheet, respectively, which do
not constitute Liabilities shall be valued at
zero."
10. Amendment of Final Paragraph of Section 2.3(d). The
Parties agree that the final paragraph of Section 2.3(d) of the
Purchase Agreement is hereby deleted in its entirety and is
hereby replaced by the following paragraph, which shall be the
final paragraph of Section 2.3(d):
"The Parties further agree and acknowledge as follows:
(i) the inventories of Seller included in the Closing
Statement have been based on physical inventories taken by
Seller or Capital, or the Auditors, at Seller's or Capital's
expense, and Buyer was given reasonable notice and an
opportunity to participate, at Buyer's expense, in the
taking of such inventories, and (ii) as appropriate, the
Closing and Post-Closing Adjustments shall be made to the
applicable financial statement line items reflecting general
ledger accounts of Seller or Capital which require
adjustment to effect the agreements of the Parties set forth
in this subsection 2.3(d)."
11. Amendment of Section 2.3(e). The Parties agree that
Section 2.3(e) of the Purchase Agreement is hereby deleted in its
entirety and is hereby replaced by the following new Section
2.3(e):
"(e) Trust Agreement. In connection with the Parties'
agreements set forth in this Section 2.3, the Parties agree
to execute and deliver on the Closing Date an HCT Security
Trust Agreement (the "Trust Agreement") in the form attached
hereto as Exhibit 2.3B, whereby the note payment received
from HDA in August, 1995 (the "August Note Payment") and the
HDA Notes shall be placed into the trust established by the
Trust Agreement at Closing to provide a fund to satisfy
other obligations of Seller to Buyer, as set forth in
Section 5.16."
12. Amendment of Section 2.6(a) and 2.6(b). The Parties
agree that Section 2.6(a) and Section 2.6(b) of the Purchase
Agreement are hereby deleted in their entirety and are hereby
replaced by the following new Sections 2.6(a) and 2.6(b):
"(a) The effective date (the "Effective Date") of the
consummation of the transactions contemplated by this
Agreement shall be 11:59 P.M. on September 30, 1995. The
Parties further agree that (i) from and after the Effective
Date, all results of the operation of the Business shall
become the Buyer's property and for the Buyer's account;
(ii) as is set forth elsewhere herein, all operational
cutoffs and prorations (i.e., payroll, utilities, and the
like) shall take effect as of the Effective Date, and any
such matter not specifically addressed herein shall be
prorated as of the Effective Date; and (iii) between the
Effective Date and the Closing Date (if any such period
shall exist) Seller shall operate the Business in accordance
with the terms and conditions of this Agreement.
(b) The consummation of the transactions
contemplated by this Agreement (the "Closing") shall take
place at the offices of Xxxxxx & Xxxxxxxxx, 0000 Merchants
Bank Building, 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxx 00000 on September 28, 1995 or, if later, the first
business day following the date on which all of the
conditions contained in Articles VI and VII, to the extent
not waived by the Party benefiting thereby, are satisfied,
but not later than the later of (i) September 30, 1995, or
(ii) such other date as Buyer and Seller may agree in
writing prior to September 30, 1995 (September 30, 1995, or
such other date, as applicable, is referred to herein as the
"Final Date"). The date on which the Closing actually occurs
is hereinafter referred to as the "Closing Date."
13. Amendment of Section 3.6(c). The Parties agree that
Section 3.6(c) of the Purchase Agreement is hereby deleted in its
entirety and is hereby replaced by the following new Section
3.6(c):
"(c) Seller has delivered to Buyer, in accordance with
Section 5.35 hereof, as Schedule 3.6C an audited,
consolidating balance sheet of Capital as of March 31, 1995
(the "March 31 Balance Sheet"). There are no material
liabilities or obligations of Capital or Seller whether
accrued, absolute, contingent or otherwise, except (i) those
reflected or otherwise provided for in the Audited and
Interim Financial Statements, (ii) those specifically
described in the Exhibits hereto, and (iii) those arising in
the ordinary course of business since March 31, 1995, and no
facts or circumstances exist that could give rise to any
material liability or obligation of any nature whatsoever
regarding the Business not fully reflected or reserved
against or to be reserved against in the March 31 Balance
Sheet, the July 31 Balance Sheet, the August 31 Balance
Sheet or the September 30 Balance Sheet to the extent
required by generally accepted accounting principles or not
incurred in the ordinary course of business and consistent
with past practice since the date thereof."
14. Amendment of Section 3.20. The Parties agree that
Section 3.20 of the Purchase Agreement is hereby deleted in its
entirety and is hereby replaced by the following new Section
3.20:
"3.20 Assets Necessary to Business. The Transferred
Assets include all of the assets, properties, licenses and
other agreements (other than the Retained Assets) (i)
reflected or to be reflected on the March 31 Balance Sheet,
the July 31 Balance Sheet, the August 31 Balance Sheet and
the September 30 Balance Sheet, except those assets disposed
of in the ordinary course of business, and (ii) that are
presently being used in the Business as presently
conducted."
15. Amendment of Section 3.21. The Parties agree that
Section 3.21 of the Purchase Agreement is hereby deleted in its
entirety and is hereby replaced by the following new Section
3.20:
"3.21 Inventory. The inventory of Seller as the same
shall exist on the Closing Date shall consist of
substantially the same types of inventory as that reflected
on the March 31 Balance Sheet, the July 31 Balance Sheet,
the August 31 Balance Sheet, the September 30 Balance Sheet
and the Closing and Final Statements, and the Inventory as
the same shall exist on the Closing Date will consist of
items substantially all of which were and will be of the
usual quality and quantity necessary for the normal conduct
of Seller's business and reasonably expected to be usable or
saleable within a reasonable period of time in the ordinary
course of Seller's business, except items of inventory which
had been written down to realizable market value or written
off completely as of March 31, 1995, July 31, 1995, August
31, 1995, September 30, 1995 and the Closing Date,
respectively, and damaged, broken or spoiled items in an
amount which does not have an adverse effect on the value of
the Inventory."
16. Amendment of Section 3.23. The Parties agree that
Section 3.23 of the Purchase Agreement is hereby deleted in its
entirety and is hereby replaced by the following new Section
3.23:
"3.23 Accounts Receivable. Schedule 1.2D when
delivered will set forth an accurate, correct and complete
aging of all Seller Receivables reflected on the August 31
Balance Sheet and the September 30 Balance Sheet. All
outstanding Seller Receivables reflected on the financial
statements delivered to Buyer are, net of the financial
statement reserves applicable thereto, due and valid claims
against account debtors for goods or services delivered or
rendered, collectible in full within thirty (30) days of
delivery and subject to no defenses, offsets or
counterclaims. All Seller Receivables arose in the ordinary
course of business. Except as set forth upon Schedule 1.2D,
no Seller Receivables are subject to prior assignment,
claim, lien or security interest. Except in the ordinary
course of business, Seller has not incurred any liabilities
to customers for discounts, returns, promotional allowances
or otherwise. Seller has no liability for any refunds,
allowances or returns in respect of products manufactured,
published, processed, distributed, shipped or sold by or for
the account of Seller on or prior to the Effective Date,
except to the extent of the reserves therefor to be
reflected on the July 31 Balance Sheet, the August 31
Balance Sheet, the September 30 Balance Sheet and the
Closing and Final Statements. Where Seller Receivables
arose out of secured transactions, all financing statements
and other instruments required to be filed or recorded to
perfect the title or security interest of Seller have been
properly filed and recorded. The reserves regarding such
receivables set forth on the March 31 Balance Sheet and to
be set forth on the July 31 Balance Sheet, the August 31
Balance Sheet, the September 30 Balance Sheet and the
Closing and Final Statements have been and will be computed
in accordance with generally accepted accounting principles
calculated consistent with past practice."
17. Amendment of Section 5.11(a). The Parties agree that
Section 5.11(a) of the Purchase Agreement is hereby deleted in
its entirety and is hereby replaced by the following new Section
5.11(a):
"(a) All federal, state and local taxes (including, but
not limited to, any reserve for Taxes accrued on Seller's
books and on the July 31, August 31 and September 30 Balance
Sheets, the Closing and September 30 Statements and the
Final Statement) of every kind and character attributable to
income or other gain accrued, earned or otherwise generated
by the operation of the Business for all time periods prior
to and up to and including the Effective Date;"
18. Amendment of Section 5.16. The Parties agree that
Section 5.16 of the Purchase Agreement is hereby deleted in its
entirety and is hereby replaced by the following new Section
5.16:
"5.16 Trust Agreement. Pursuant to Section 2.3
hereof, the August Note Payment and the HDA Notes will be
put into trust on the Closing Date to provide a fund to
satisfy: (i) Seller's and Capital's joint and several
obligation to indemnify and hold Buyer harmless regarding
Seller's and Capital's representation, warranties,
agreements and covenants set forth herein; (ii) Seller's
obligation to satisfy fully either on or after the Closing
Date all obligations and liabilities of the Business which
are not Liabilities; and (iii) any obligation of Seller to
deliver funds to Buyer as a result of the Parties'
determination of the Final Purchase Price in the manner
contemplated herein.
In connection therewith, the Parties agree that
the Trust Agreement shall provide by its terms for the
following: (i) the Trust Agreement shall exist for a period
of three (3) years; and (ii) on December 31, 1996, December
31, 1997 and the third anniversary of the Closing Date,
Seller may withdraw all cash then in the trust, less an
aggregate amount of cash equal to all valid claims then
outstanding under and pursuant to this Agreement and/or the
Trust Agreement.
Seller and/or Capital agree they shall obtain, in
form, scope and substance reasonably satisfactory to Buyer,
all consents required in Buyer's and Buyer's counsel's
reasonable judgment for the placing of the HDA Notes into
the trust contemplated hereby, the payment of all payments
of principal and interest coming due under the HDA Notes
into the trust created by the Trust Agreement, and the
purchase of the HDA Notes by Buyer. In connection with the
obtaining of such consents, Seller and Capital agree that
Seller shall obtain an agreement in form, scope and
substance reasonably satisfactory to Buyer from HD America
that for so long as such HDA Notes remain outstanding, HD
America will provide to Buyer financial information
reasonably satisfactory to Buyer and/or Buyer's lenders
regarding HD America's financial condition.
Subject to the provisions of Section 9.4(c)
Capital hereby agrees to guarantee the full payment of the
HDA Notes in accordance with their terms pursuant to the
Guaranty, and Seller hereby unequivocally and
unconditionally guarantees to Buyer the full payment of the
HDA Notes in accordance with their terms."
19. Amendment of Section 5.31. The Parties agree that
Section 5.17 of the Purchase Agreement is hereby deleted in its
entirety and is hereby replaced by the following new Section
5.17:
"5.17 Cleveland Service Center. On the Execution
Date, Buyer agrees and Seller acknowledges that Buyer and
Breckenridge Corporation shall enter into an Agreement in
the form attached as Exhibit 5.17 hereto, regarding the
real properties (the "Cleveland Store") more particularly
identified in Exhibit 5.17 hereto, which on the Execution
Date are owned by Breckenridge Corporation and leased by
Seller and which constitute Seller's service center located
at Xxxx 00xx Xxxxxx and Superior Avenue in Cleveland, Ohio.
Seller hereby agrees that pursuant to such Agreement, Buyer
shall assume Seller's lease of the Cleveland Store as of
11:59 p.m. on September 30, 1995."
20. Amendment of Section 5.31. The Parties agree that
Section 5.31 of the Purchase Agreement is hereby deleted in its
entirety and is hereby replaced by the following new Section
5.31:
" 5.31 Jacksonville Property. Seller has obtained and
delivered to Buyer, at Seller's expense, Phase I and Phase
II environmental audits (the "Jacksonville Audits") of
Seller's real properties and improvements located at 0000
Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx (the "Jacksonville
Property"). The Parties acknowledge that the Jacksonville
Audits reveal environmental contamination of the
Jacksonville Property, the true extent of which is not known
to the Parties. The Parties agree that Buyer shall have no
responsibility, obligation or expense of any kind or
character regarding the existence of or the remediation of
any contamination at the Jacksonville Property in existence
on the Effective Date, whether revealed on such audits or
otherwise, and that any expense caused by or arising
directly or indirectly from (i) such contamination; (ii) the
remediation thereof, or (iii) with regard to such
contamination, bringing the Jacksonville Property into
compliance with all Environmental Laws (as such term is
defined in Section 3.11 hereof) shall be the sole obligation
and expense of Seller. Capital and Seller agree to
indemnify and hold Buyer harmless from any and all Damages
caused by or arising directly or indirectly from the
contamination of the Jacksonville Property in existence on
the Effective Date and/or Capital or Seller's failure to
bring the Jacksonville Property into compliance with all
Environmental Laws regarding such contamination, and further
agrees that such indemnification shall not be subject to the
requirement set forth in Section 9.3 hereof that Damages
suffered by Buyer must exceed the sum of Fifty Thousand
Dollars ($50,000) before Buyer may seek indemnification from
Seller and Capital, and Seller and Capital agree that Buyer
may seek indemnification from Seller and Capital without
regard to such limitation.
The Parties agree that on the Closing Date Buyer
shall lease the Jacksonville Property from Seller on the
Closing Date, which lease shall (i) have a fixed term of ten
(10) years; (ii) provide for equal monthly payments of Five
Thousand Dollars ($5,000) per month, for an annual aggregate
rental of Sixty Thousand Dollars ($60,000) per year; and
(iii) be "triple net." In connection therewith, Seller
agrees to execute and deliver a landlord waiver to
NationsBank of Georgia, N.A., Buyer's lender."
21. Amendment of Section 5.35(a). The Parties agree that
Section 5.35(a) of the Purchase Agreement is hereby deleted in
its entirety and is hereby replaced by the following new Section
5.35(a):
"5.35(a) Schedule Deliveries by Seller. Buyer and
Seller hereby agree as follows regarding the deliveries by
Seller contemplated by this Agreement:
(a) Seller and Capital shall deliver to Buyer, in
accordance with the terms and conditions of this Agreement,
the following Schedules:
1.2D Schedule of Seller Receivables
1.2E Schedule of Inventory
1.2F Schedule of Furniture, Fixtures and Equipment
2.1B Schedule of Trade Payables
2.1C Schedule of Accrued Expenses
2.3A July 31 Balance Sheet
2.3B Closing Statement
2.3C August 31 Balance Sheet
2.3D August 31 Statement
2.3Y September 30 Balance Sheet
2.3Z September 30 Statement
3.6A Consolidated Balance Sheets as at March 31, 1993,
1994, and 1995
3.6B Interim Financial Statements as of December 31,
1994, January 31, 1995, February 28, 1995, April
30, 1995, and May 31, 1995
3.6C Audited Consolidated Balance Sheet as of March 31,
1995
3.9 Copies of the Leases"
22. Amendment of Section 5.38. The Parties agree that
Section 5.38 of the Purchase Agreement is hereby deleted in its
entirety and is hereby replaced by the following new Section
5.38:
"5.38 HDA Note. Buyer, Seller and Capital acknowledge
and agree that, after the Execution Date, Seller will
receive from HD America, Inc., pursuant to Seller's
agreements with HD America, Inc., cash, the August Note
Payment and an additional HDA Note relating to Seller's
business operations prior to the Closing Date. Seller
agrees that upon Seller's receipt of the August Note Payment
and such HDA Note, but not such cash, shall be promptly
delivered to the Trustees in trust under and pursuant to the
Trust Agreement and thereafter dealt with by the Trustees in
accordance with the terms and conditions of the Trust
Agreement."
23. New Section 5.39. The Parties agree that the following
is hereby added to the Purchase Agreement as a new Section 5.39
thereof:
"5.39 Cincinnati Lease. The Parties acknowledge that
a provision of the lease by which Seller leases Seller's
Cincinnati, Ohio facility requires Capital to be a guarantor
of Seller's obligations under such lease and further
provides that the lessor thereof may declare a default if
Capital's net worth falls below the sum of One Million
Dollars ($1,000,000). Buyer acknowledges that Capital plans
to liquidate at some time within one (1) year following the
Closing Date, and that such liquidation may cause a default
under such lease. Buyer hereby assumes the risk of the
declaration of a default by the landlord thereof as a result
of the liquidation of Capital and agrees not to seek
indemnification from Seller and Capital in the event of a
declaration of a default by the landlord thereof."
24. Amendment of Section 9.4(c). The Parties agree that
Section 9.4(c) of the Purchase Agreement is hereby deleted in its
entirety and is hereby replaced by the following new Section
9.4(c):
"(c) Buyer hereby agrees that following the merger
of Seller into Capital, with Capital the surviving entity,
and the effective date of Capital's dissolution, Buyer shall
look solely to the monies and assets of Seller contained in
the trust established pursuant to Sections 2.3(e) and 5.16
hereof as the sole source of funds from which to satisfy any
obligation of Seller or Capital to indemnify and hold Buyer
harmless in the manner set forth herein, and Buyer agrees
that Buyer shall not seek recourse from any of Capital's
shareholders or any member of the Seller Group, as such term
is defined below."
25. Consents. The Parties acknowledge that consents
regarding the transactions contemplated by the Purchase Agreement
have been previously obtained by Seller in connection with an
earlier attempted consummation of such transactions which did not
occur. Xxxxxxx on the one hand and Seller and Capital on the
other hereby agree that for the purposes of the Purchase
Agreement as between the Parties all such consents shall be
deemed to be dated as of September 30, 1995, notwithstanding the
actual date thereof.
26. Incorporation. The Parties agree that except as set
forth herein, the terms and conditions of the Purchase Agreement
remain in full force and effect as a binding agreement of the
Parties, and the Parties further agree the terms and conditions
of the Purchase Agreement are incorporated herein as if set forth
word-for-word.
27. Conflict. In the event of a conflict between the terms
and conditions of the Purchase Agreement and the terms and
conditions of this First Amendment, the Parties agree that the
terms and conditions of this First Amendment shall govern.
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be executed as of the date first above written.
CAPITAL INDUSTRIES, INC.
By: _______________________________
Name: _____________________________
Title:_____________________________
TRUCKPRO PARTS & SERVICE, INC.
By: _____________________________
Name: _____________________________
Title:_____________________________
XXXXXXX LIMITED PARTNERSHIP,
XXXXXXX, INC., an Arkansas
corporation, General Partner
By: _____________________________
Name: _____________________________
Title:_____________________________
CORAL THREE CORPORATION, an
Arkansas corporation, General
Partner
By: _____________________________
Name: _____________________________
Title:_____________________________
XXXXXX CAPITAL CORPORATION, an
Arkansas corporation, General
Partner
By: _____________________________
Name: _____________________________
Title:_____________________________
